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Judgment
Dr. Pratibha Upasani, J.—This criminal revision application is filed by the State, being aggrieved by the order dated 26th November, 1992 passed by the Metropolitan Magistrate, 28th Court, Esplanade, Bombay, rejecting the application dated 29th October, 1992 made by the Prosecutor u/s 311 of the Code of Criminal Procedure, 1973 to recall prosecution witness No. 1 Smt. Jyoti Patil, whose deposition was over.
In this case, the accused/respondents are facing trial for offence punishable u/s 498-A of the Indian Penal Code.
I have heard Mr. Galeria, A.P.P appearing for the applicant-State, so also Mr. M.S. Mohite, appearing for the respondents. I have also perused the proceedings. It is revealed that after the trial commenced, prosecution witness No. 1 Smt. Jyoti Patil was examined. Her cross-examination and re-examination also was over. Prosecution specifically stated that they had nothing to ask, and the witness was discharged. Thereafter, on 29th October, 1992, the Prosecutor Mr. Sonawane made application u/s 311 of Code of Criminal Procedure, 1973 to recall prosecution witness No. 1 Jyoti, which came to be rejected by the Metropolitan Magistrate.
After hearing both the Advocates and after perusing the proceedings, in my opinion, the learned Magistrate has not committed any error in rejecting the application made by the Prosecutor.
Section 311 of the Code of Criminal Procedure, 1973 gives power to the Court at any stage of the enquiry, trial or other proceedings, to summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined. It is pertinent to note that this power is conferred upon the Court and not upon the prosecution. Even the Court is required to exercise its discretion properly and judiciously. The learned Magistrate, therefore, was justified in rejecting the application made by the Prosecutor to recall Jyoti. In view of this, no interference is called for. Hence, the following order:
Criminal Revision Application No. 29 of 1993 is dismissed. Ad-interim order dated 23rd March, 1993 granting stay of the Criminal Case No. 249/P/ 89 on the file of the Esplanade Court, Bombay is hereby vacated.
Rule discharged. The lower Court to proceed with the case expeditiously, in accordance with law.
Parties to appear before the lower Court of 14th June 1999.
Writ to be sent forthwith.
Application dismissed.